26:0568(67)NG - FUSE Local R1-144 and Navy, Naval Underwater Systems Center -- 1987 FLRAdec NG



[ v26 p568 ]
26:0568(67)NG
The decision of the Authority follows:


 26 FLRA No. 67
 
 FEDERAL UNION OF SCIENTISTS 
 AND ENGINEERS, LOCAL R1-144
 Union
 
 and
 
 DEPARTMENT OF THE NAVY 
 NAVAL UNDERWATER SYSTEMS 
 CENTER
 Agency
 
                                            Case No. 0-NG-1327
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute).  The case concerns the
 negotiability of the following proposal:
 
          The activity will to the maximum extent possible accommodate
       employees' requests for compensatory time off or work for
       religious compensatory time, unless such modification in the
       individual's work schedule would seriously interfere with the
       efficient accomplishment of the activity's mission.  (Note.  The
       activity is expected to accommodate to an employee's request to
       work compensatory time.  If no productive time is available to be
       worked by the employee at such time as he or she may initially
       request, alternative times shall be arranged for the performance
       of the compensatory work.)
 
                       II.  Position of the Parties
 
    The Agency argues that the first sentence regarding the granting of
 compensatory time is inconsistent with a Government-wide regulation,
 specifically 5 CFR 550.1002, which governs the granting of compensatory
 time for religious observances.  The Agency states that the proposal's
 requirement that it "to the maximum extent possible accommodate
 employee's requests" unless it "would seriously interfere with the
 efficient accomplishment of the activity's mission" is more restrictive
 than the standard established by 5 CFR 550.1002.  The Agency also argues
 that the proposal violates management's right to assign work under
 section 7106(a)(2)(B) of the Statute, because it interferes with
 management's right to approve or disapprove leave, and because it
 compels management to provide some type of "make-work" if no work is
 available.
 
    The Union argues that the proposal allows management leeway to
 arrange productive work at alternative times for the performance of the
 compensatory work, and that in the case that no work were available, no
 work would be assigned.  The Union also states that the words "to the
 maximum extent possible" allow management's right to assign work since
 it may not be possible to accommodate the employee's request.
 
                       III.  Analysis and Conclusion
 
    This proposal requires the Agency to grant compensatory time off to
 employees "to the maximum extent possible" unless it "would seriously
 interfere with the efficient accomplishment of the activity's mission."
 As such, this proposal is similar to the proposal found nonnegotiable in
 American Federation of Government Employees, Local 1923 and Department
 of Health and Human Services, Social Security Administration, Baltimore,
 Maryland, 17 FLRA 543 (1985).  The proposal in that case required that
 requests for religious compensatory time be granted unless doing so
 "would seriously disrupt the agency's function." The Authority found
 that the standard set out in the proposal for denying such requests was
 inconsistent with the standard set out in 5 CFR 550.1002.  In this
 regard, 5 CFR 550.1002 requires an agency to grant an employee's request
 for religious compensatory time and to modify the employee's work
 schedule "to the extent that such modifications in work schedules do not
 interfere with the efficient accomplishment of an agency's mission(.)"
 Inasmuch as 5 CFR 550.1002 is a Government-wide regulation, the
 Authority concluded that the proposal was nonnegotiable.
 
    As previously set forth, the proposal in this case requires the
 Agency to grant compensatory time off to employees unless this "would
 seriously interfere with the efficient accomplishment of the activity's
 mission." Like the proposal in Social Security Administration,
 Baltimore, Maryland, this standard is inconsistent with the standard
 established by 5 CFR 550.1002.  Thus, the proposal in this case
 conflicts with the Government-wide regulation and is outside the duty to
 bargain under section 7117(a)(1) of the Statute.
 
    The inclusion of the phrase "to the maximum extent possible" does not
 alter our conclusion that this proposal is nonnegotiable.  This language
 does not modify in any manner the standard set out in the proposal for
 denying requests for compensatory time for religious observances which
 standard is inconsistent with 5 CFR 550.1002.  Rather, this phrase
 obligates the Agency to make maximum efforts to grant requests for
 religious compensatory time if the standard for denying such requests
 set out in the proposal is not met.  Since the standard is inconsistent
 with the applicable Government-wide regulation, the Agency cannot be
 required to make maximum efforts to comply with it.
 
    In view of this finding, it is unnecessary for us to consider the
 Agency's additional contentions concerning the negotiability of this
 proposal.  Further, it is unnecessary for us to address the Union's
 claim that the proposal is an appropriate arrangement under section
 7106(b)(3) since that section applies only when management exercises one
 of the reserved rights s